North Carolina to Defy U.S. Justice Department’s Demand to Allow Men in Women’s Restrooms

RALEIGH, N.C. — Government officials in North Carolina say that they will defy the U.S. Department of Justice and its demand that the state allow men who identify as women in women’s restrooms and vice versa as today marks the deadline for the state to comply with the Obama administration.

“We will take no action by Monday,” House Speaker Tim Moore told reporters. “That deadline will come and go. Obviously, we don’t ever want to lose any money, but we’re not going to get bullied by the Obama administration to take action prior to Monday’s date. That’s not how this works.”

As previously reported, Principal Deputy Assistant Attorney General Vanita Gupta of the U.S. Department of Justice issued a letter on Wednesday to Gov. Pat McCrory, accusing the state of violating federal law by not allowing government restrooms to be used in a manner that correlates with one’s “gender identity.”

“The State is engaging in a pattern or practice of discrimination against transgender state employees, and both you in your official capacity and the state are engaging in a pattern or practice of resistance to the full enjoyment of Title VII rights by transgender employees of public agencies,” she wrote.

The correspondence focused on government employees who identify as the opposite gender.

“Access to sex-segregated restrooms and other workplace facilities consistent with gender identity is a term, condition or privilege of employment,” Gupta said. “Denying such access to transgender individuals, whose gender identity is different from the gender assigned at birth, while affording it to similarly situated non-transgender employees, violates Title VII.”

The cited section of federal law prohibits employers from discriminating against a person because of their gender. The law has generally been considered as applying to discrimination against women in treating females as inferior to males.

Gupta also referenced Title IX of the Education Amendments of 1972, which prohibits educational institutions from discriminating against a person based on their gender.

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance,” it reads.

But Gupta says that the courts have interpreted the law as applying to gender identity issues as well, and therefore, “H.B. 2, which took effect on March 23, 2016, is facially discriminatory against transgender employees on the basis of sex because it treats transgender employees, whose gender identity does not match their biological sex, as defined by H.B. 2, differently from similarly situated non transgender employees.”

She gave McCrory until Monday to advise the Department of Justice that the state will not “comply with or implement” the state’s newly-passed restroom law, and that it will notify state employees that “they are permitted to access bathrooms and other facilities consistent with their gender identity.”

But McCrory expressed disgust at the federal government’s demands. He said that he would reply to the correspondence as requested, but has not indicated exactly how he would respond other than noting that he is looking at all options.

“The Obama administration has not only staked out its position for North Carolina, but for all states, universities and most employers in the U.S.,” McCrory said. “The right and expectation of privacy in one of the most private areas of our personal lives is now in jeopardy.”

He outlined to reporters on Sunday that he requested additional time to respond, but the Justice Department refused.

“It’s the federal government being a bully. It’s making law,” McCrory said.

The Christian Action League of North Carolina has called upon the state to stand firm.

“At the hands of his henchmen in the U.S. Department of Justice, King Obama has delivered his message of intimidation to the state of North Carolina,” wrote executive director Mark Creech on social media. “The Great Pontiff of Political Correctness holds the educational futures of our state’s children hostage, while dangling the money bags of federal funds over their heads, demanding in exchange North Carolina bow to the madness of obliterating male and female distinctives.”

North Carolina could lose $4.8 billion in federal funding for standing its ground. It could also face a federal lawsuit in an effort to force the matter.

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Law Professor John Banzhaf

In a letter the Department of Justice [DoJ] has given the governor of North Carlina and several officials a deadline of Monday afternoon to agree not to “comply with or implement” its own recently passed state statute governing who may use which state restrooms.

The Governor has now acted by filing his own law suit.

However the demand, and the entire federal case, may have a fatal flaw which is seemingly being overlooked, says public interest law professor John Banzhaf.

Even assuming that DoJ’s interpretation of a very broad statute is correct in its specific but contested application to restroom use by transgender people, that doesn’t mean that the interpretation automatically overrides a law passed by a sovereign state which deals specifically with this matter, says Prof. Banzhaf, raising a legal issue known as federal preemption.

While federal law may in some instances override state statutes, courts have repeatedly held that, for this to happen, the intent of Congress to preempt state law must be very clear.

In other words, courts will not lightly override the declared will of a sovereign state, especially in areas which have traditionally been left to the states, unless the Constitution or federal law clearly requires.

As the Supreme Court recently put it: “Intent can be inferred from a framework of regulation ‘so pervasive . . . that Congress left no room for the States to supplement it’ or where a ‘federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject’ [OR] ‘state laws are preempted when they conflict with federal law, including when they stand ‘as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'”

Needless to say, this is not an easy or automatic judgement to make, and the Supreme Court has had to make the final call on many different cases in recent years.

The task is further complicated here because, unlike many other cases where Congress itself indicated its intent in the language of the statute, DoJ is relying primarily not upon the statute’s language, but rather upon a guidance letter issued by regulators without opportunity for notice and comment, says Banzhaf, who has won over 100 discrimination legal actions, and has supported the rights of LGBT people.

In a recent ruling, the 4th Circuit [which includes North Caroline] ruled in favor of a transgender person who wished to use a restroom based upon the gender mentally identified with, rather than one corresponding to anatomy. In a preliminary ruling, the court ruled for the youth.

But it relied not upon any language in any federal statute – i.e., Title IX, which expressly permits restrooms segregated by gender – nor even upon a regulation which had been adopted in accordance with the normal procedure provided by federal law which permits public comments before rules are issued.

Rather, it simply said that the lower court, which had rebuffed a student’s complaint over restroom usage, did not give sufficient deference to a so-called guidance document issued by the Department of Education [DoE] – essentially an opinion on what a regulation means – but not a law in which Congress has clearly expressed its desire to override state law in an area traditionally left to the states. In any event, it was not a final ruling, but rather the case was remanded to the lower court for further proceedings.

So there the court had no reason to address the issue of federal preemption, because there was no state statute which allegedly conflicted with a federal law. That could be very different in North Carolina where DoJ is insisting that the state act contrary to a state statute – a situation not presented by this earlier case.

In any event, says Banzhaf, although many in the media have made much of the so-called Monday deadline, it is really nothing of the kind. The DoJ letter simply says that if the state does not promise not to “comply with or implement” its own statute, the DoJ will “apply to the appropriate court for an order” assuring compliance with its demands.

At that time, the state can impose its own legal arguments: e.g., that the stringent conditions for federal preemption have not been met, that the DoJ’s interpretation of federal law is not correct, that there are other and better ways of preventing so-called discrimination against transgender people without permitting any anatomical male to share restrooms and showers with girls and women based solely upon his uncorroborated claim that he feels like a woman, etc.

The courts will then weigh these and other legal arguments, decide whether the need for immediate action is so compelling that a preliminary injunction should be issued, or whether both sides should wait for a final judicial resolution. In other words, there is little downside risk to North Carolina for not agreeing to the demand.

Although there may have been few if any instances where a truly transgender [M2F] woman engaged in inappropriate behavior in a female restroom, the concern seems to be that any man could claim the right to use a female restroom, and defend himself if arrested there, simply by claiming this status.

PUBLIC INTEREST LAW PROFESSOR JOHN BANZHAF
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Josey

He hit the concern with a hammer perfectly on the nail! That is the concern, men who will walk into a ladies room whether restroom, changing facility, public swimming pools, shower facilities at schools and camping grounds and then claim if caught that he thinks he is a woman, he won’t need to even wear a dress, he can just make the claim, it is a perverts dream. I don’t get why ppl can’t understand this concern many have. Those who do not understand obviously lack common sense. Go North Carolina!

http://www.slowlyboiledfrog.com/ DavidHart-slowlyboiledfrog.com

It’s rubbish. Minneapolis has had these protections in place for over 30 years. It simply doesn’t happen. Men are not going to dress as women to enter bathrooms to see naked ankles.

Gal5:22-23

At least part of the law is unconstitutional as per Romer v. Evans, since it limits the ability of municipalities from passing their own civil rights protections for sexual orientation.

As for the rest, as the polls are showing the majority of Americans think that transgenders should be be able to use the restrooms and facilities of their gender expression. This is just a last gasp by opponents at their first opportunity to have a hissy fit post Ogbergefell in state legislatures. It will be reversed eventually.

http://www.slowlyboiledfrog.com/ DavidHart-slowlyboiledfrog.com

Yeah, well the Fourth Circuit Court of Appeals has ruled otherwise and NC is in the Fourth Circuit.

201821208 :)

“male and female created He them” Gen. 1:27

SFBruce

I’m sure you realize we can’t base laws solely on the Bible, since we have freedom of religion and not all Americans believe the Bible is the ultimate authority on truth. Even among those who do see it as a sacred text, there’s disagreement about its actual meaning.

And yes, the passage you cite seems to say our gender is assigned at the moment of conception, but the passage doesn’t say there’s always concordance between one’s gender identity and one’s outward appearance. Remember, trans people have a strong feeling that there’s a conflict between their identity, and their physical body. For them there’s really no difference between gender conforming surgery and surgery to repair a cleft palate.

201821208 :)

“He who trusts in his own heart is a fool” Proverbs 28:26

LadyFreeBird♥BlessedBeTheLord

Amen.

Dio Jones

Great Job NC!!!!

Always be a light that is .shininginthedark.

Ted Bundy

Where do you think all of these potential offenders have been using the restroom up until now? That’s right, if they aren’t in with the girls, they’re in with the boys. Why the outrage now? Never mind that criminals don’t obey laws in the first place, let alone a plastic sign.

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